So, You Thought It Would Never Happen?

A private business owner in Seattle has been told that he will face fines and penalties if he refuses to bake “wedding” cakes for deviant couples in violation of his religious faith. If it’s “racist” to discriminate against deviant couples having a “wedding,” then it’s wrong for a Rabbi to refuse to marry them, as well.

34 comments to So, You Thought It Would Never Happen?

But if we legislate some of this, how can we not legislate all? A wedding hall refuses to service gays, just like they refuse blacks and Jews – now what? Or the flip side, whatever group wants to make a cause out of it, searches for every private business that doesn’t want to service them so that they can make lawsuits – either making the proprietor miserable or putting him out of business.

maybe there is a risk with test cases. the Hobby Lobby supreme court case later this year will test whether private non-religious corporations may use their religious beliefs as an exemption from ObamaCare contraception mandates… but i dont think its outcome will let small business owners —such as this, or landlords against unmarried cohabitors— get religion exemptions… it’s a problem when one Fundamental Right [religion] comes up against another [class descrimination]…

No it’s not. I’m not a lawyer in Washington, but my guess is that the bakery also would not be allowed to refuse to bake a cake on the grounds that the couple was Catholic. Nonetheless, Rabbis are not required to officiate at Catholic ceremonies. You can be disturbed by the precedent being set here without exaggerating it into something it isn’t.

The difference between places of public accomodation (most businesses, most rental properties, etc.) and religious institutions has been clearly drawn, not only in case law, but also in the laws as they have been passed themselves. The Catholic church may limit the people they train, hire, and certify as priests to unmmaried male Catholics without risk of being guilty of discriminating on the basis of religious belief, gender, or marital status.

I’m curious. Would the content and intent of this blog entry have been any different had you chosen to use “same sex couples” instead of “deviant couples”? I utterly condemn the actions of Judge Spencer, but the kind of invective you’re using is hate-filled language that I don’t see any justification for. You can be against something without calling names like that.

That said… the same law would forbid a Christian owned cakeshop from refusing service to Jews. Or rather than get into the issue of kashrut, the same law would forbid a Christian owned dress shop or tux rental place from refusing service to Jews. Personally, I’m against that, as well. People should be entitled to decide who they do business with and who they don’t. But it seems a little hypocritical to only object to it in this case.

Lisa, you said: ” People should be entitled to decide who they do business with and who they don’t.”

Do you believe a cab driver should be entitled to not open the door for black people? Should Delta be able to refuse to fly Muslims? Should the New York Mets be able to decide that they won’t let Jews into Citi Field anymore? What about a private hospital? Should they have the right to refuse to treat patients of a certain skin color or religion?

I think you need to differentiate between merely denying service to someone based on their religion or sexual orientation, and refusing to provide a service that somehow participates or expresses approval of sinful activity.

My impression about this case (I may be confusing it with another bakery case, but the concept is the same), is that the bakery is willing to do business with same sex couples that has no connection to their relationship — selling them a danish or a cookie, or even a cake that says Happy Birthday. But a wedding cake that expresses best wishes to the marrying couple (“Many Happy Returns” or “Congratulations”) and/or having a little statute of a couple, in this case a same-sex couple, on top, crosses over into forced approval or participation in the sin.

I see no reason that distinction should not apply to Jews as well. Renting a tuxedo has nothing to do with a wedding — people rent tuxedos for all kinds of reasons, including dinners, parties, state dinners, etc. Creating a cake that says “Mazel Tov to the Chassan and Kallah” is something else.

One small error. The event took place in Colorado; the story was simply reported on a Seattle based website.

One really obnoxious point is that the State of Colorado denies same-sex marriage, allowing only civil unions. That discrimination has far worse effects than requiring them to find another baker willing to create a wedding cake.

Larry, I didn’t say illegal, I said wrong. Raising a religious refusal to endorse such a “marriage” to the level of “racism” contributes to the demonization of traditional religion and its adherents, already rampant in this country.

Lisa’s comment proves my point. She claims that a reference to such a relationship as “deviant” is “hate-filled language,” imputing an underlying feeling entirely absent from my conscious perspective on the issue. Of the various options, I decided “deviant” was lashon nekiyah, clean language. But if you express a religious view, attaching adjectives like “hate filled” and “violent” has become trivial. This case is the next step in demonization of traditional religious views.

Sholom, I’ll take the bait. If a person believes that a marriage between different races is against his or her religion, and that baking the wedding cake would endorse that relationship, then yes, freedom of religion requires that this person be entitled to not serve that customer. I think the person would find himself or herself rapidly out of business — not because of government intervention, but because the general public is not interested in supporting such racist views. [Thinking of the counter-argument, there is no religion out there that says a restaurant can’t serve a black person; the government has already proven itself adept at distinguishing between true religious views and “using religion as a cover” when it comes to inmates in the penal system.] There is a difference between discrimination based upon a person’s race, religion, or national origin, and discrimination based upon the choices an individual makes, especially when they run counter to another person’s religious views.

Reference the Chick-Fil-A controversy surrounding the owner’s charitable investments opposed to LGBT “rights” and comments by the COO. It’s not for the government to determine where they can open a restaurant (the mayors of Boston and Chicago got themselves in hot water over comments about Chick-Fil-A franchises in their cities with, of all people, the ACLU). Rather, some people chose to avoid that business, and others chose to support it, because of this conflict.

What about a Jewish baker who doesn’t want to bake the cake for an intermarriage? Is he a racist, or observing his religion? What about a Jewish magazine that, as policy, only lists intra-Jewish-marriages?

Actually, it has already happened that a nursing-home owner was accused of “racism” for not providing a Jewish patient with non-Kosher food (the cost of making the whole operation kosher would have driven him out of business). He somehow managed to placate her without it becoming quite literally a federal case.

Yoreh Deah 151:1. A pagan would like to buy frankincense from my store to do his pagan worship. If he doesn’t buy from me, he’ll buy from some other store in town. The Torah says pagan worship is 100% completely wrong, even for non-Jews. Do we endorse paganism? Chas v’Shalom! So nu rabbosai, what’s the halacha?

I don’t understand how using the pejorative “deviant couples” instead of the more descriptive “same sex couples” could possibly be considered lashon nekiah. Because the latter has the word “sex” in it? How about “same gender couples”?

The fact is, you used a term that conveyed deep contempt. If that wasn’t your intent, then perhaps you should have given it additional thought before posting.

Tal, you make a good point about the difference between selling them a cookie and making them a wedding cake. Either way, I don’t think it’s the business of government to tell people who they can or cannot or must or must not trade with.

Sholom, yes, all of the things you mentioned, as disgusting and disgraceful as they would be, are things that should not be prohibited by law. For crying out loud, we of all people should know how dangerous it is to have governments enforcing moral positions, rather than simply protecting citizens from being abused by other citizens. And by “abused”, I mean taking away something they are *entitled* to. Bodily integrity. Contracts being kept. No one is *entitled* to trade with me. They do so voluntarily, and I do so voluntarily, but that’s our business, and no one else’s.

I’d like to add that R’ Menken knows very well that I’m not one to use “hate-filled” against religion. I used the term — and I’d like to note that he initially edited it to “harsh” and only changed it back in order to use it for an accusation of anti-religious sentiment — because when you see a same-sex couple, you can say, “Hey, there goes a cute couple.” That’s supportive, and I wouldn’t expect that. You can say, “There goes a same-sex couple. I disapprove.” Or you can say, “There goes a deviant couple.” The last one is not all that different from “There goes a zhid.”

Lisa and Rabbi Menken,
All of the examples I cited are indeed against the law in the U.S, and have been for over 60 years, since the Civil Rights Movement. And we Jews are all much better off for it.

The government has a responsibility to protect the civil rights of its citizens (including right to life, liberty, financial and personal security, safety, etc.), that includes protecting them from discrimination in matters of business, employment and housing (among other things).

In addition, the Separation of Church and State–enshrined in our Constitution–forbids the Govt. from exempting people or businesses from civil rights laws based on religious belief. In the extreme and obvious example it means I can’t murder someone (infringe on their right to life) and then claim my religion requires me to do it. So too, I cannot claim that my religion requires I refrain from business (infringe on their right to financial security) with someone because of their religion or race.

And the only reason we have these laws, is because many, many people were (and still are) horribly discriminated against all the time.

For a friend to voluntarily bake a wedding cake for a ceremony expresses approval of the ceremony. For a bakery to sell a wedding cake to whoever is willing to pay for it does not. It only expresses that one is a business that sells baked goods to whoever pays for them. I believe one can, if one wants, buy a wedding cake for any occasion or purpose without the baker checking for a marriage license Or at least it not enough of a direct expression of approval to overrule public accommodation laws. Do you really want to go back to the era when many hotels and other places of accommodation were closed to Jews? I am old enough to remember it and I don’t. If the baker feels compelled to express his disapproval he can say: “Sure, that cake is $X–by the way I think you are a sinner.”

Given how Rabbeinu Tam ruled (despite the simplest understanding of the gemara) regarding doing business with neighbors whose behavior we do not approve of (note that every day of the week is within three days of a Sunday if you can’t figure out what I am talking about) I cannot imagine why you would feel the need to refuse to do business with others whose behavior we consider sinful. This reflects something other than religious devotion (at least from us Jews).

There should be room in our vocabulary for non-PC pejoratives where these capture the negative tone their objects deserve. Jews as such have been insulted for no good reason; others have been insulted for very good reason.

It is all well and good for people to push politically correct “go along to get along” perspective but the fact remains that a wedding ceremony has serious religious overtones.

I have no problems with the state prohibiting someone from refusing a sale because the proprietor doesn’t like how it will be used but I do have serious problems with the state mandating service business participate in such ceremonies.

The government doesn’t have the right to infringe on my religious liberties. I should be able to open a catering service (or so forth) to cater to the needs of the kosher community without being forced to provide that service in a church. I should be able to do so without being forced to provide that service where the chuppah isn’t according to halachah.

Let people purchase what they want to purchase but there should be no “right” to my service that infringes upon my religious liberties.

Sholom, I think I understand what you meant by your description of the separation of church and state, but the words are a bit confusing. Firstly, the words “separation of church and state” appear nowhere in the document of the constitution, but rather in the notes of an author. The 1st amendment, which is presumably what you are referring to is a limit on government. The issue here is not establishing an official religion or favoring a religion, which is the wording and intent of the relevant passage in the Constitution. Rather the issue is whether a private business may refuse to serve a customer based on his lifestyle. Had the baker been an atheist, the Constitutional question would be the same.

That gay couple could have gone to so many other bakeries that would have accommodated them. Instead, they deliberately went to that specific bakery in order to infringe on the religious sensibilities of that family-run business. That gay couple simply had no tolerance for anybody who dares to hold on to the Torah view of male homosexual behavior. They are using the courts to force their intolerance on those of us who do not agree that such a sexual perversion is nothing more than an alternative lifestyle.

In a truly free country, privately-run businesses would be allowed to refuse to do business with whomever they would rather not do business with. If that requires them posting a sign making that clear, than so be it. Let businesses rise or fall based on their own choices, rather than being forced by the government to run their business in a way that violates their moral and/or religious codes.

It is not wise to assume motivations that are not in evidence, i.e., the victim is “asking for it” by being deliberately provocative. If you read up on the case and read up on postings from, for example, the mother, it is clear that the outcome was a total surprise to all involved.

Besides, what if it is the only baker in town? Or one that stands out the most because of the quality of its services, etc.?

As numerous others have commented, we don’t want to start opening up the Pandora’s box here…we Jews should be especially sensitive to this issue based on past experience.

In response to Just Saying:
First of all, just because the exact phrase “separation of church and state” isn’t in the constitution, doesn’t mean it’s not a key part of the document.

Secondly, my point to Rabbi Menken was that people and businesses cannot claim a religious exemption from the law. Because if the govt accepted religious exemptions, it would also have to accept non-religious exemptions, which would make the law meaningless. So, regardless of the business owner’s religious viewpoint, he is not lawfully allowed to refuse to sell something to someone on the basis of his race, religion, gender, etc.

It seems we agree with each other, and disagree with Rabbi Menken, who (incorrectly) stated that “If a person believes that a marriage between different races is against his or her religion, and that baking the wedding cake would endorse that relationship, then yes, freedom of religion requires that this person be entitled to not serve that customer.”

I look forward to the civil rights lawsuit to be brought against the gay baker who refuses to provide services (including cakes with custom inscriptions) to members of the Westboro Baptist Church putting on an anti-homosexuality party.

Just a point of precision – this really has nothing to do with same-sex marriage. In many states, laws have been interpreted to bar discrimination in a variety of ways based on sexual orientation. However, it’s fairly clear based on Federal Statutes (RIFRA, for example) and the 1st Amendment that clergy could never be forced to marry particular individuals if they are opposed, whatever the religious reason (intermarriage, gender, sexual orientation, whatever).

The current case may be unfair, but it really is a separate and distinct issue (legally, that is) from the marriage issue.

Freedom of religion is recorded in the Bill of Rights. Sexual orientation as a protected characteristic such as race has been legislated into existence relatively recently. When the two rights clash one of necessity will prevail at the loss of the other. What is most distressing, and suggestive of what might be on the horizon, is the apparent favoritism courts have shown for the latter over the former. Given that courts have determined religious liberty is not an absolute it is illogical to use past events to predict future judicial behavior. In a similar case in New Mexico involving a photographer who refused to do a gay wedding on religious grounds the New Mexico Supreme Court ruled in favor of the same-sex couple and pronounced that the loss of religious freedom of choice was essentially “the cost of being a citizen” in our diverse modern society. Who says it can’t happen at the federal level?

INterestingly, on another blog, which discusses legal issues, one of the regular contributors posted the following hypothetical:

Shlomo Cohen has been blessed with a son, but he lives in San Francisco, where there is a vocal anti-circumcision movement. He emails his neighbor, a photographer, and asks him if he would photograph his son’s bris. The photographer responds, “Shlomo, no offense, but I think circumcision amounts to genital mutilation, and I can’t participate in that.” Next, he approaches his local organic/vegeterian caterer about catering the bris. The caterer says, “you know Shlomo, I’ve done brises in the past, but I’ve been reading some of the literature put out by the anti-circumcision people, and I think circumcisions cause unnecessary pain to baby boys. So I don’t do brises anymore.”

Shlomo files a complaint with San Francisco’s human rights commission, claiming that the photographer and the caterer are engaging in discrimination against him based on his Jewish ethnicity and religion. There is no evidence that either person turns down or otherwise mistreats Jewish clients or potential clients, and both deny they do so. Should Shlomo win his case?

Yirmiyahu mentions a distinction, that works within definitions of law: liberty vs. civil rights. Gays have a right to be protected and to pursue happy lives. But they do not have a “right” to impose their views upon others – that would be a violation of others’ liberty. MK Moshe Feiglin makes exactly the same point this week in the Knesset (google “Feiglin Knesset family values”).